By: Jay Shattuck, Executive Director Employment Law, Illinois Chamber of Commerce
Illinois employers experienced another busy year on the workplace front in Springfield. In 2021, over a dozen changes were approved by the General Assembly and Gov. Pritzker. Changes from employment discrimination, equal pay and covenants to compete and solicit will require business owners, managers and human resource professionals to be on top of their game in readying for compliance.
New Penalties Raise Stakes of Noncompliance
Employers need to be aware that several changes in recent years have dramatically increased the penalties and liability for noncompliance. PA 102-50, effective July 9, 2021, dramatically increased the penalty for violations under the Wage Payment & Collection Act from 2% to 5% per month for any underpayments in wages for each month following the date of payment during which such underpayments remain unpaid. This area of law typically revolves around disputes of vacation pay, paid leave, commissions, etc. Gray areas of employee interpretation of facts versus an employer’s. With the current administrative and judicial activism in Illinois, employers likely will see an explosion of litigation in this area of law.
P.A. 101-177, effective September 29, 2019, and 102-36, effective June 25, 2021, increased penalties for violation of the Equal Pay Act. Those penalties can range from $500 to $10,000 per affected employee. Affected employees may also be awarded punitive damages, injunctive relief, and the costs and reasonable attorney’s fees as may be allowed by the court and as necessary to make the employee whole.
What You can do
Get Management Commitment…owners and senior management must be committed to compliance with the often-complicated Illinois and federal employment laws. Human resources is no longer just about payroll and benefit administration and the policies coming out of Springfield can cause not only cost increases but significant management distraction.
Organization leadership must also be engaged and involved with Springfield lawmakers. One of the easiest ways to get involved is to participate as an active member of the Illinois Chamber of Commerce.
Be informed & Knowledgeable on the Issues…your executive team needs to make what’s happening in Springfield a priority. The Illinois Chamber and its Councils provide timely email updates and numerous opportunities throughout the year to engage with like-minded employers and Illinois policymakers. Joining the Chamber and one or more of its Councils is a solid investment in your company’s future. Our Councils are Employment Law; Energy; Environment Healthcare; Infrastructure; International Business; Tax and Technology. Each Council represents its members with knowledgeable, professional and competent staff at the Capitol. When you join the Chamber select the Councils that will best assist your organization to be more successful in Illinois.
Engage your Legislators…have your senior leaders meet at least annually with your legislators. Provide a tour of your facilities giving the lawmakers an opportunity to meet staff and employees. Communicate with your legislators on continuous basis about key issues to your organization. Your legislators need also to understand your organizations impact on employment, community involvement and charitable giving. They also need to recognize how their decisions can impact your company’s ability to sustain employment, community involvement and charitable giving. Communicate your thanks when they support your company and let them know when they disappoint with a vote on an important issue.
Participate in the Electoral Process…at a minimum keep yourself and management informed as to how your legislators are helping or harming your organization’s abilities to be successful. Again, the Illinois Chamber helps its members by providing ratings as to how legislators voted on issues important to the business community.
The business community’s clout in Springfield has diminished significantly in recent years. Our adversaries at the Capitol do a better job of mobilizing their supporters at election time. The Illinois business community is seen as a “paper tiger” when it comes to making a difference on election day. Only by voting and educating and encouraging employees to vote at election time can we bring more “clout balance” to the decisions coming out of Springfield.
Also, engage by financially supporting legislative candidates who support job creation and free enterprise. The Illinois Chamber Political Action Committee is an easy and effective way to assure your financial investment is going to lawmakers and candidates who are working to improve Illinois’ economic climate.
New Employment Laws for 2021
VIDEO INTERVIEWS: PA 102-47 effective date of January 1, 2022, .HB 53, amends the Artificial Intelligence Video Interview Act to require employers that rely solely upon artificial intelligence to determine whether an applicant will qualify for an in-person interview to gather and report certain demographic information to the Department of Commerce and Economic Opportunity.
SECURE CHOICE SAVINGS PROGRAM: PA 102-179 effective January 1, 2022 expands the Act to employers that do not offer a retirement plan with at least 5 employees. Michael W. Frerichs – Illinois State Treasurer: Secure Choice (illinoistreasurer.gov)
PENALTY INCREASES FOR UNPAID WAGES: PA 102-50 effective July 9, 2021, amends the Wage Payment & Collection Act is amended to provide that an employee is entitled to recover damages of 5% per month (rather than 2%) of the amount of any underpayments in wages for each month following the date of payment during which such underpayments remain unpaid.
EXPANSION OF VESSA: PA 102-487, effective January 1, 2022, expands the Victims’ Economic Security and Safety Act (VESSA) covering: 1) victims and family members of victims of crimes of violence and 2) any individual whose close association with the employee is the equivalent of a family relationship.
WAGE WITHHOLDING FOR HEALTH INSURANCE: PA 102-87, effective January 1, 2022, SB 258, sponsored by Sen. Mike Hastings (D-Mokena) and Rep. Kelly Burke (D-Chicago), amends the Illinois Marriage and Dissolution of Marriage Act regarding health insurance coverage for children.
LIMITS ON NON-COMPETES & NON-SOLICITS: PA 102-358, effective January 1, 2022, makes reasonable limitations on covenants not to compete and covenants not to solicit and provides employers greater clarity and certainty as to whether their covenant not to compete or covenant not to solicit will meet judicial scrutiny. Applies to agreements entered into after the effective date.
RIGHT OF CONSCIENCE LAW: PA 102-667, effective June 1, 2022, provides that it is not a violation of the Act for any person or public official, or for any public or private association, agency, corporation, entity, institution, or employer to take any measures or impose any requirements intended to prevent contraction or transmission of COVID-19 or any pathogens that result in COVID-19 or any of its subsequent iterations.
HEALTH INSURANCE BENEFIT DISCLOSURE REQUIREMENTS: PA 102-630, effective August 27, 2021, creates the Consumer Coverage Disclosure Act to require employers to disclose to employees the differences under the employees’ health coverage and health coverage providing essential benefits under health plans regulated by the State of Illinois. The Illinois Department of Labor (IDOL) has posted information, including a downloadable “checklist” of Illinois Essential Health Benefits (see attached PDF). Consumer Coverage Disclosure Act – Fair Labor Standards Division (illinois.gov)
EQUAL PAY CERTIFICATE REGISTRATION CLEANUP: PA 102-36, effective June 25, 2021, requires employers of 100 or more Illinois employees certain wage and benefit data similar to what is required to be filed with the EEOC to be filed with the Illinois Department of Labor.
PERSONNEL RECORDS STATUTE OF LIMITATIONS: PA 102-562, effective January 1, 2022, amends the Personnel Record Review Act allowing an individual to file a complaint with the Director of Labor or commence an action alleging a violation within 3 years after the date of the disclosure of a disciplinary action.
HUMAN RIGHTS-WORK AUTHORIZATION: PA 102-233, effective August 2, 2021, provides that it is the public policy of the State to prevent discrimination based on the specific status or term of status that accompanies a legal work authorization. It defines “work authorization status” as the status of being a person born outside of the United States, and not a U.S. citizen, who is authorized by the federal government to work in the United States.
EQUAL PAY/DEFERRED COMPENSATION PA 102-277, effective January 1, 2022, provides that an employer may request an applicant to verify the aggregate amount of unvested equity or deferred compensation the applicant would forgo by resigning the applicant’s current position.
DEFINITION OF DISABILITY: PA 102-419, effective January 1, 2022, adds to the Illinois Human Rights Act that discrimination based on disability includes unlawful discrimination against an individual because of the individual’s association with a person with a disability.
MRSA PRESUMPTION: PA 102-493, effective August 20, 2021, amends the Workers’ Compensation Act that, with respect to firefighters and emergency medical technicians, a contagious staph infection, including Methicillin-resistant Staphylococcus aureus (MRSA), is rebuttably presumed to arise out of and in the course of employment.